RFP #23/025SG
5.0 CONTRACT TERMS AND CONDITIONS
These Contract Terms and Conditions are part of the final contract in each product and/or service contract awarded as a result of
this RFP and are part of the terms and conditions of each Purchase Order or proposal forms issued in connection with this RFP.
Vendors are responsible for identifying any exceptions to these terms and conditions. ANY EXCEPTIONS MUST BE NOTED
DIRECTLY BELOW EACH OF THE RESPECTIVE TERMS AND CONDITIONS, REDLINED IN “RED” AND
UPLOADED INTO THE RESPONSE ATTACHMENTS SECTION OF THE EBID SUBMISSION. Proposals that are
qualified with conditional clauses, items not called for, or other irregularities may be considered non-responsive by HCDE/CP
and eliminated from further consideration.
CONTRACT BETWEEN
HARRIS COUNTY DEPARTMENT OF EDUCATION AND
West Music Company (“VENDOR”)
FOR
MUSICAL INSTRUMENTS & RELATED ITEMS
This Contract is entered into between HCDE/CP and Vendor, having submitted a proposal in response to this RFP issued by
HCDE/CP and whose proposal has been accepted and awarded by HCDE. In consideration of the mutual covenants and
conditions contained in this Contract and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, HCDE/CP and Vendor, intending to be legally bound, and subject to the terms, conditions, and provisions of this
Contract, agree as follows:
5.1. Definitions
The terms used in this Contract shall have the meanings assigned to them in Section 1.0 Notice of Intent of the RFP.
5.2. Use of Contract by CP members
Vendor agrees and understands that this RFP and Contract may be used to accomplish work for HCDE/CP, a local
governmental entity. Vendor further agrees and understands that this RFP and Contract may also be utilized by CP
members pursuant to the piggyback method, as contemplated in the U.S. Department of Agriculture Memorandum SP
35-2012, Procuring Services of Purchasing Cooperatives, Group Purchasing Organizations, Group Buying
Organizations, etc. (“SP 35-2012). Vendor agrees and understands that CP members include “school food authorities,”
and or contracting entity (CE) as that term is used in SP 35-2012.
5.3. Contract Terms; Amendment
The terms and conditions of this Contract shall govern all procurements conducted hereunder. No pre-published terms
on the Purchase Order, acknowledgments, invoices, or other forms shall have any force or effect unless expressly agreed
to by the CP member and Vendor. No amendment of this Contract shall be permitted unless and until first approved in
writing by HCDE/CP and, if necessary, the CP member(s), and no such amendment shall have any effect unless and
until a written amendment to this Contract is executed by the HCDE Superintendent or his designee after any necessary
approvals have been obtained from the HCDE Board of Trustees. In the event that a Vendor has an existing HCDE/CP
contract in the same contract title, upon award the new contract will immediately supersede the older contract.
5.4. Term of Contract; Renewal of Contract
The initial term of this Contract is for a period of one (1) year, with HCDE/CP having the option to renew the Contract
for four (4) additional one-year terms, at HCDE’s sole discretion, unless otherwise specified in Section 6.0 Scope of
Proposal, Consequently, the total term of the Contract may be for a period of five (5) years. The phrase “Term” in
this Contract shall mean the then-current Term of the Contract, whether an initial term or a renewal term.
5.5. Termination of Contract; Survival
This Contract shall remain in effect until (1) the Contract expires by its terms or (2) the Contract is terminated by mutual
consent of HCDE/CP and Vendor. All Supplemental Contracts, purchase orders, and/or orders for goods or services
issued by HCDE and/or CP members and accepted by Vendor shall survive the expiration or termination of this Contract.
During the term of any Supplemental Contract entered into between Vendor and a CP member, all terms of this Contract
shall continue to apply to the Supplemental Contract.
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In the event of a breach or default of the Contract and/or the RFP by Vendor, HCDE/CP reserves the right to enforce
the performance of the Contract in any manner prescribed by law or deemed to be in the best interest of HCDE/CP
and/or CP members. HCDE/CP further reserves the right to terminate the Contract immediately in the event Vendor
fails to: (1) meet schedules, deadlines, and/or delivery dates within the time specified in the RFP, this Contract, and/or
a Purchase Order; (2) make any payments owed; or (3) otherwise perform in accordance with this Contract and/or the
RFP. HCDE/CP also reserves the right to terminate the Contract immediately, with written notice to Vendor, if
HCDE/CP believes, in its sole discretion that it is in the best interest of HCDE/CP and/or CP members to do so.
In the event that a material change to the terms of the Contract occurs, then the Contract shall be allowed to expire and
shall not be renewed upon the conclusion of the Contract’s term. The phrase “material change” in this paragraph shall
mean a modification that substantially exceeds the terms of the original contract between HCDE/CP and Vendor. Upon
the expiration of the Contract’s term, HCDE/CP may issue a new RFP for the goods or services procured under the
previous contract.
Vendor agrees that HCDE/CP shall not be liable for damages in the event that HCDE/CP declares Vendor to be in
default or breach of this Contract and/or the RFP. Vendor further agrees that upon termination of the Contract for any
reason, Vendor shall, in good faith and with reasonable cooperation, aid in the transition to any new arrangement
and/or Vendor.
5.6. Prevailing Wage Rates – Construction/public works projects only
Vendor and all subcontractors of Vendor shall comply with all laws regarding prevailing wage rates, including, but not
limited to, TEX. GOV’T. CODE Chapter 2258, applicable to the construction of a public work, and any related federal
requirements, including the DAVIS-BACON ACT. In the event TEX. GOV’T. CODE Chapter 2258 applies to a
product or service provided by Vendor to HCDE/CP or a CP member, Vendor and any subcontractor(s) shall comply
with the prevailing wage rates set by HCDE/CP or the CP member.
5.7. Change Orders
Pursuant to TEX. EDUC. CODE § 44.0411(a), for HCDE/CP and CP members that are Texas school districts, if a
change in plans or specifications is necessary after the performance of a Purchase Order has begun or if it is necessary
to decrease or increase the quantity of work to be performed or of materials, equipment, or supplies to be furnished, the
CP member may approve change orders making the changes. The total Purchase Order price may not be increased
because of the changes unless additional money for increased costs is approved for that purpose from available money
or is provided for by the authorization of the issuance of time warrants. The CP member may grant general authority
to an administrative official to approve the change orders. A Purchase Order with an original contract price of $1 million
or more may not be increased under TEX. EDUC. CODE § 44.0411(a) by more than 25 percent. If a change order for
a Purchase Order with an original contract price of less than $1 million increases the contract amount to $1 million or
more, the total of the subsequent change orders may not increase the revised contract amount by more than 25 percent
of the original contract price.
5.8. Compliance with Laws
Vendor shall comply with all applicable federal, state, and local laws, statutes, ordinances, standards, orders, rules, and
regulations, including, as applicable, workers’ compensation laws; minimum and maximum salary and wage statutes
and regulations; prompt payment and licensing laws and regulations; anti-discrimination statutes and regulations (Title
VI of the Education Amendments of 1972; Section 504 of the Rehabilitation Act of 1973; the Age Discrimination Act
of 1975; Title 7 C.F.R. Parts 15, 15a, and 15b; the Americans with Disabilities Act; and FNS Instruction 113-1, Civil
Rights Compliance and Enforcement—Nutrition Programs and Activities); the Davis-Bacon Act (40 U.S.C. § 276a / 29
CFR Part 5); the Copeland “Anti-Kickback” Act (18 U.S.C. § 874 / 29 CFR Part 5); the Equal Opportunity Employment
requirements (Executive Orders 11246 and 11375 / 41 CFR Chapter 60); the McNamara-O’Hara Service Contract Act
(41 U.S.C. 351); Section 306 of the Clean Air Act (42 U.S.C. § 1857h); Section 508 of the Clean Water Act (33 U.S.C.
§ 1368); Executive Order 11738, Environmental Protection Agency regulations (40 CFR Part 15); the Contract Work
Hours and Safety Act (40 U.S.C. § 3701-3708; 29 C.F.R. Part 5; the Solid Waste Disposal Act (Section 6002 as amended
by the Resource Conservation and Recovery Act for procuring solid waste management services in a manner that
maximizes energy and resource recovery when contract amount is in excess of $10,000); the Education Department
General Administrative Regulations (“EDGAR”)/Uniform Guidance (2 C.F.R. Part 200); mandatory standards and policies
contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub.
L. 94-163, 89 Stat. 871); and all applicable requirements and regulations, including those related to reporting, patent
rights, copyrights, data rights, and those mandated by federal agencies making awards of federal funds to HCDE/CP
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and/or CP members, including, without limitation, the U.S. Department of Agriculture and/or Texas Department of
Agriculture. Vendor understands that Vendor is ineligible to receive a contract award with HCDE/CP if Vendor or its
principal(s) is listed on the government wide exclusions in the System for Award Management (Debarment and
Suspension Orders Executive Orders 12549 and 12689) or is 30 days or more delinquent in paying child support (Tex.
Fam. Code § 231.006). For the entire duration of this Contract, Vendor and all subcontractors shall maintain all required
licenses, certifications, permits, and any other documentation necessary to perform this Contract. All permits will be
acquired by Vendor and invoiced to the CP member at cost as part of the Purchase Order, unless the permits are provided
by the CP member. For the entire duration of this Contract, Vendor and all subcontractors shall also comply with all
requirements pertaining to local, state, or federal health and safety certifications, licensing, or regulations. Vendor must
comply with all state and local building code requirements unless otherwise specifically provided in the CP member’s
Purchase Order, and Vendor must pay all fees and charges for connections to outside services and for use of property
outside the project site. The states of individual CP members may have regulations and laws that govern payment
retention and progress payments for public projects. Vendor is responsible for being acquainted with and complying
with each state’s requirements. When required or requested by HCDE/CP or a CP member, Vendor shall furnish
HCDE/CP and/or the CP member with satisfactory proof of Vendor’s compliance with this provision.
5.9. Confidentiality
Vendor and HCDE/CP agree to secure the confidentiality of all information and records in accordance with applicable
federal and state laws, rules, and regulations. Vendor and HCDE/CP understand that the Family Educational Rights
and Privacy Act (FERPA), 20 U.S.C. § 1232g, governs the privacy and security of educational records and information
and agree to abide by FERPA rules and regulations, as applicable. Vendor also acknowledges that HCDE/CP and
numerous CP members are subject to the Texas Public Information Act, and Vendor waives any claim against and
releases from liability HCDE/CP and CP members, their respective officers, employees, agents, and attorneys with
respect to disclosure of information provided under or in this Contract or otherwise created, assembled, maintained, or
held by Vendor, HCDE, or a CP member and determined by HCDE/CP or the CP member, the Attorney General of
Texas, or a court of law to be subject to disclosure under the Texas Public Information Act.
5.10. Performance and Payment Bonds – Construction/public works projects only
Vendor agrees to provide performance bonds and/or payment bonds as required by law, based on the amount or
estimated amount of any Purchase Order for a public work contract, which is defined as a contract for constructing,
altering, or repairing a public building or carrying out or completing any public work. TEX. GOV’T. CODE §
2253.001(4). Pursuant to TEX. GOV’T. CODE § 2253.021, a performance bond is required if a Purchase Order is in
excess of $100,000 for CP members that are governmental entities subject to Chapter 2253; a payment bond is required
if a Purchase Order is in excess of $25,000 for CP members that are governmental entities subject to Chapter 2253 and
are not municipalities or a joint board created under Subchapter D, Chapter 22 of the Tex. Transp. Code, and a payment
bond is required if a Purchase Order is in excess of $50,000 for CP members that are governmental entities subject to
Chapter 2253 and are municipalities or a joint board created under Subchapter D, Chapter 22 of the TEX. TRANSP.
CODE.
5.11. Title and Risk of Loss
Whenever HCDE/CP or a CP member is purchasing (and not leasing) a product under this Contract, title and risk of
loss shall pass upon the later of HCDE/CP or the CP member’s acceptance of the product or payment of the applicable
invoice.
5.12. Warranty Conditions
All product(s) and/or service(s) provided by the Vendor under this Contract must be warranted to be free from defects
in material, workmanship, and free from such defects in design for a period of one (1) year upon the later of HCDE’s
or the CP member’s acceptance of the product and/or service or payment of the applicable invoice. Vendor warrants
that all products and/or services furnished under this Contract shall conform in all respects to the terms of this Contract,
including any drawings, specifications, and/or standards incorporated herein, including, without limitation, those
detailed in the RFP and Purchase Order. In addition, Vendor warrants that product and/or services are suitable for and
will perform in accordance with the purposes for which they are intended. Vendor shall assume all liabilities incurred
within the scope of consequential damages and incidental expenses, as set forth in the Vendor or manufacturer’s
warranty, which result from either delivery or use of product, which does not meet the specifications within this
Contract, the RFP, or Purchase Order.
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5.13. Criminal History Review
Section 10.0 Attachment–Ch. 22 Contractor Certification: Contractor Employees (Required) must be submitted
with packet, if applicable.
Prior to commencing any work under the Contract, if Vendor contracts with HCDE/CP to provide services, Vendor
must comply with all requirements relating to criminal history information required by TEX. EDUC. CODE Chapter
22. Vendor must also ensure subcontractors’ compliance with TEX. EDUC. CODE, Chapter 22 requirements. Covered
employees with disqualifying criminal history are prohibited from serving at HCDE/CP or at CP school district
members’ locations; Vendor and any subcontracting entity may not permit a “covered employee” to provide services at
a school if the employee has a “disqualifying criminal history” (as those terms are defined below).If Vendor receives
information that a covered employee has a reported disqualifying criminal history, then Vendor will immediately
remove the covered employee from the project/contract and notify HCDE/CP member in writing within three (3)
business days. If HCDE/CP member, in its sole discretion, objects to the assignment of a covered employee for any
reason, including, but not limited to, on the basis of the covered employee’s criminal history record information and/or
insufficient qualifications, lack of experience, and the like, based on information gathered by HCDE/CP member
through the procurement and/or contracting processes, Vendor (and each subcontractor) agrees to discontinue using that
covered employee to provide services on HCDE/CP member’s project/contract. “Covered employees” means
employees, agents or subcontractors of Vendor or a subcontractor who has or will have continuing duties related to the
services to be performed on HCDE/CP member’s project/contract and has or will have direct contact with HCDE/CP
member’s students. “Disqualifying criminal history” means:(1) For employees of a contracting or subcontracting entity
that is providing engineering, architectural, or construction services on a project to design, construct, alter, or repair a
public work: (1) a conviction or other criminal history information designated by HCDE/CP member; (2) a felony or
misdemeanor offense that would prevent a person from being employed under Texas Education Code § 22.08341(d),
that is: conviction during the preceding 30 years (if at the time of the offense, the victim was under 18 or was enrolled
in a public school) of: (a) a felony offense under Title 5, Texas Penal Code; (b) an offense on conviction of which a
defendant is required to register as a sex offender under Chapter 62, Texas Code of Criminal Procedure; or (c) an offense
under federal law or the laws of another state that is equivalent to (a) or (b); (2) For employees of all other contracting
or subcontracting entities: (1) a conviction or other criminal history information designated by Owner; (2) a felony or
misdemeanor offense that would prevent a person from being employed under Texas Education Code § 22.085(a), that
is: (a) conviction of a felony offense under Title 5, Texas Penal Code if at the time of the offense, the victim was under
18; (b) conviction of or placement on deferred adjudication community supervision for an offense for which a defendant
is required to register as a sex offender under Chapter 62, Texas Code of Criminal Procedure; or (c) conviction of an
offense under federal law or the laws of another state that is equivalent to (a) or (b). HCDE/CP member shall be solely
responsible for making the final determination of what constitutes direct contact with HCDE/CP member’s students and
what constitutes a disqualifying criminal history. The criminal history record information review obligation applies
only if Vendor contracts with HCDE/CP to provide services; it does not apply to a contract for the purchase of goods,
products or real estate.
5.14. Customer Support
Vendor shall provide timely and accurate technical advice and sales support to HCDE/CP staff, and CP members.
Vendor shall respond to requests for customer support within one (1) business day after receipt of the request. Vendor
shall provide training to HCDE/CP staff and/or CP members regarding products and/or services supplied by Vendor, at
no additional charge or as defined in the vendor’s Supplemental Contract (see Section 1.2.6), if requested by HCDE/CP
or a CP member.
5.15. HCDE/CP and/or CP members’ Property
In the event of loss, damage, or destruction of any property owned by or loaned by HCDE/CP or a CP member that is
caused by Vendor or Vendor’s representative, agent, employee, or contractor, Vendor shall indemnify HCDE/CP or the
CP member and pay to HCDE/CP or the CP member the full value of or the full cost of repair or replacement of such
property, whichever is greater, within thirty (30) days of Vendor’s receipt of written notice of HCDE’s or the CP
member’s determination of the amount due. If Vendor fails to make timely payment, HCDE/CP or the CP member may
obtain such money from Vendor by any means permitted by law, including, without limitation, offset or counterclaim
against any money otherwise due to Vendor by HCDE/CP or the CP member.
5.16. Tax Exempt Status
HCDE/CP and all CP members that are Texas governmental entities or agencies are exempt from payment of Texas
State Sales Taxes under TEXAS TAX CODE§ 151.310 for the purchase of tangible personal property. Laws of other
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states govern the tax status of CP members in states other than Texas. Vendor represents and warrants that it shall pay
all taxes or similar amounts resulting from this Contract, including, without limitation, any federal, state, or local
income, sales or excise taxes of Vendor or its employees. HCDE/CP and CP members shall not be liable for any taxes
resulting from this Contract, except where otherwise required by law.
5.17. Other State Tax Requirements
5.17.1. Payment of Taxes by CP members Outside of Texas – CP members outside of Texas will pay only the rate
and/or amount of taxes identified in Vendor’s proposal submitted in response to the RFP as appropriate to the
specific CP member.
5.17.2. State and Local Transaction Privilege Taxes – The CP member is subject to all applicable state and local
transaction privilege taxes. Transaction privilege taxes apply to the sales of products and are the sole
responsibility of Vendor, as the seller, to remit. Failure to remit taxes from HCDE/CP and/or the CP member,
as the buyer, does not relieve Vendor, as the seller, from its obligation to remit taxes.
5.18. State of Texas Franchise Tax
By submitting a proposal in response to the RFP, Vendor certifies that Vendor is not currently delinquent in Vendor’s
payment of any franchise taxes or other taxes owed to the State of Texas.
5.19. Tax Responsibilities of Vendor and Indemnification for Taxes
Vendor is responsible for complying with the tax laws of states and the federal government. Vendor and all
subcontractor(s) of Vendor shall pay all federal, state, and local taxes applicable to Vendor’s operation, any persons
employed by Vendor, and all subcontractors of Vendor. Vendor shall require all subcontractors to hold HCDE/CP and
the CP member harmless from any responsibility for taxes, damages, and interest. If applicable, contributions required
under federal, state, and/or local laws and regulations and any other costs, including, but not limited to, transaction
privilege taxes, unemployment compensation insurance, Social Security, and Worker’s Compensation, shall be the sole
responsibility of Vendor.
5.20. IRS W-9
To receive payment under this Contract, Vendor shall have a current I.R.S. W-9 Form on file with the CP member.
5.21. Assignment of Contract
Vendor may not assign this Contract or any of its rights, duties, or obligations hereunder without the prior written
approval of HCDE. Any attempted assignment of this Contract by Vendor shall be null and void. Any Purchase Order
made as a result of this Contract may not be transferred, assigned, subcontracted, mortgaged, pledged, or otherwise
disposed of or encumbered in any way by Vendor without the prior written approval of HCDE/CP and, if applicable,
the CP member.
5.22. Notification of Material Change
Vendor is required to notify HCDE/CP when any material change in operations occurs, including changes in distribution
rights for awarded products, bankruptcy, material changes in financial condition, change of ownership, and the like,
within three (3) business days of such change.
5.23. Performance
Vendor agrees to use commercially reasonable best efforts to provide the product(s) and/or service(s) subject to this
Contract. Vendor shall furnish all supervision, labor, tools, equipment, permits, licenses, transportation, insurance,
material, and supplies necessary to complete any scope of work, Purchase Order under this Contract. Vendor shall use
skilled, trained personnel, who shall be supervised by Vendor.
5.24. Subcontractors
If Vendor uses subcontractors in the performance of any part of this Contract, Vendor shall be fully responsible to
HCDE/CP and CP members for all acts and omissions of the subcontractors. Nothing in this Contract shall create for
the benefit of any such subcontractor any contractual relationship between HCDE/CP and any such subcontractor, nor
shall it create any obligation on the part of HCDE/CP or CP members to pay or to see to the payment of any monies due
any such subcontractor except as may otherwise be required by law. Vendor represents and warrants that it is willing,
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able, and capable of obtaining, supervising, and being responsible for any subcontractors who perform and/or provide
products and services related to this Contract.
5.25. Non-Appropriation
Renewal of this Contract, if any, will be in accordance with TEX. LOCAL GOV’T. CODE § 271.903 concerning non-
appropriation of funds for multi-year contracts. Notwithstanding any other provision of this Contract or obligation
imposed on HCDE/CP or any CP member by this Contract, HCDE/CP and CP members shall have the right to terminate
this Contract, any Supplemental Contract, or Purchase Order without default or liability to Vendor resulting from such
termination, effective as of the expiration of each budget period of HCDE/CP or any CP member if it is determined by
HCDE/CP or any CP member, at their sole discretion, that there are insufficient funds to extend this Contract, any
Supplemental Contract, any Purchase Order. The parties agree that this Contract, any Supplemental Contract, and/or
any Purchase Order are commitments of the current revenue of HCDE/CP and CP members only.
5.26. Ordering Procedures
Purchase Orders are issued by HCDE/CP and/or CP members to the Vendor according to this Contract and any
Supplemental Contract between HCDE/CP and the CP member. HCDE/CP may request confirmation of receipt of the
Purchase Order from Vendor.
HCDE/CP also may elect to require e-commerce functionality, in which Purchase Orders are sent directly to Vendor
and reported by the CP member to HCDE/CP on a specified basis. The e-commerce approach must be approved by
HCDE/CP prior to the start date of any Term of the Contract.
5.27. Invoices; Payments
5.27.1. Vendor shall submit invoices, in duplicate, directly to HCDE/CP or the CP member at the appropriate
location(s) specified by HCDE/CP or the CP member. Each invoice shall include HCDE’s or the CP member’s
Purchase Order number and HCDE/CP Contract Number. All invoices shall be itemized to include the type of
product(s) and/or service(s) rendered. Vendor shall submit invoices within a timely manner during HCDE’s or
the CP member’s fiscal year in which the product(s) and/or service(s) are purchased. The shipment tracking
number or pertinent information for verification of HCDE’s or the CP member’s receipt shall be made available
upon request by HCDE/CP or the CP member.
5.27.2. HCDE/CP or the CP member will make payments directly to Vendor. HCDE/CP or the CP member placing
the Purchase Order with Vendor shall alone be liable and/or responsible for payment for product(s) and/or
service(s) ordered and must be invoiced directly by Vendor. Neither HCDE/CP nor any CP member shall be
liable for the indebtedness of any one CP member.
5.27.3. TEX. GOV’T. CODE § 2251.021 shall govern when payments are due to the Vendor. Payments are due to
Vendor by HCDE/CP and any CP member whose governing body meets only once a month or less frequently,
within forty-five (45) days after the later of the following: (1) the date HCDE/CP or the CP member receives
the products and services under the Contract; (2) the date the performance of the service under the Contract is
completed; or (3) the date HCDE/CP or the CP member receives an invoice for the products or service. For
CP members whose governing bodies meet more than once a month or more often, payments are due by those
CP members within thirty (30) days after the later of the following: (1) the date the CP member receives
product(s) under the Contract; (2) the date the performance of the service under the Contract is completed; or
(3) the date the CP member receives an invoice for product(s) or service(s). Vendor agrees to pay any
subcontractors the appropriate share of the payment received from HCDE/CP or the CP member not later than
the tenth (10th) day after the date the Vendor receives the payment from HCDE/CP or the CP member.
The exceptions to payments made by HCDE, a CP member, and/or Vendor listed in TEX. GOV’T. CODE §
2251.002 shall apply to this Contract.
5.27.4. In addition to all other rights and remedies that HCDE may have, HCDE shall have the right to setoff, against
any and all amounts due to Vendor by HCDE, whether due under this Contract or any other agreement between
HCDE (including any division of HCDE) and Vendor, any sums for which HCDE is entitled to under this
Contract, as determined by HCDE in its sole discretion, including, without limitation, sums due by Vendor to
HCDE as a result of indemnification obligations, warranty claims, and/or HCDE/CP Administrative Fee(s).
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5.28. Reporting
The Vendor shall report to HCDE/CP the total dollar volume of all sales under this Contract for the previous month.
Reports are due, at a minimum, monthly and no later than the fifteenth (15th) day of the month following the sale.
Reporting shall be itemized by Purchase Order number and list the CP contract number, CP member name, date, and
Purchase Order total dollar amount. Vendor is responsible for collecting and compiling all sales under this Contract
from all CP members.
The Vendor shall provide HCDE/CP with velocity/usage reports within five (5) business days of any request by
HCDE/CP for such reports.
Reports shall be submitted to HCDE/CP by logging on to the Vendor Portal on the choicepartners.org website and using
the “Monthly Reporting” tool to add Purchase Order information in the online form or via bulk upload using .xlsx files.
Months without sales shall be reported on the same webpage.
5.29. Pricing Changes
All prices and discount percentages in Vendor’s proposal shall be firm for the Term of this Contract. Pricing may be
negotiated during the Contract renewal period. In the event Proposer’s prices will be adjusted or escalated upon a
renewal (if any) of the fixed-price contract awarded pursuant to this RFP, Proposer must indicate such in its proposal.
Indicate any list price adjustment Vendor intends on providing during the Term of this Contract and on what it is based.
For example: CPI, MSRP, Price List, Website Pricing. Vendor agrees to promptly lower the proportionate price of any
product purchased through this Contract following a reduction in the price the Vendor is paying suppliers. All pricing
submitted to HCDE/CP in Vendor’s proposal shall include the administrative fee to be remitted to HCDE/CP by Vendor.
It is Vendor’s responsibility to keep all pricing up-to-date and on file with HCDE/CP. For all pricing changes, including
at renewal and during the Term, all price changes shall be presented to HCDE/CP for acceptance or rejection by
HCDE/CP, in its sole discretion, using the same format as was accepted in Vendor’s original proposal; all price changes
for products and/or services provided under this Contract must be approved, in writing, by HCDE/CP prior to taking
effect.
The following documentation shall be provided to support a request for a price change:
5.29.1. justification for change/increase
5.29.2. terms and conditions
5.29.3. market conditions
5.29.4. manufacturers’/distributors’ impact, if any
All price decreases shall be allowed for all products and/or services.
5.30. HCDE/CP Administrative Fee
HCDE/CP will invoice Vendor for the HCDE/CP Administrative Fee of 2%, subject to the Administrative Incentive
Clause, below. HCDE/CP reserve the right to decrease the Administrative Fee at any time, upon notice to Vendor. The
invoice for the Administrative Fee will be based on total sales made through this Contract. Vendor shall remit payment
of the HCDE/CP Fee to HCDE/CP no later than thirty (30) days following the end of the month. Failure to pay the
HCDE/CP Administrative Fee in a timely manner may result in Vendor breaching this Contract and may result in
HCDE/CP suspending or terminating this Contract. Vendor shall honor and pay HCDE/CP the HCDE/CP
Administrative Fee for any sales resulting from this Contract that occurred within thirty (30) days of the expiration or
termination of this Contract. All rebates, discounts, and other applicable credits granted by Vendor as a result of any
Supplemental Contracts entered into between Vendor and CP members shall accrue exclusively to CP member(s).
Administrative Fee Incentive Clause. The following incentives will be determined in the sole discretion of
HCDE/CP and will be based on amounts actually billed by Vendor. Vendor’s failure to abide by the Contract’s terms
and conditions, including, without limitation, Vendor’s requirement to report sales to HCDE/CP, may result in
HCDE/CP voiding the Administrative Fee Incentive, in HCDE/CP’s sole discretion.
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Aggregate Year
Gross sales above $5M invoiced by Choice Partners = 1.5% for remainder of the then-
current Contract Term
Subsequent renewal 1-year Term = 1.75% and Vendor must maintain production of $5M
to keep 1.75% fee for the next subsequent renewal 1-year Term
Task Orders/Job Orders
$2M or above - 1.5% only in the Contract Term in which they are invoiced
$1M or above - 1.75% only in the Contract Term in which they are invoiced
NOTE: FAILURE TO REPORT WILL VOID THIS ADMINISTRATIVE FEE INCENTIVE
5.31. Records Retention
Vendor shall maintain its records and accounts in a manner that shall assure a full accounting for all product(s) and/or
service(s) provided by the Vendor to HCDE/CP and/or CP members under this Contract. These records and accounts
shall be retained by Vendor and made available for review and copying by HCDE/CP and CP members for a period of
not less than three (3) years from the date of completion of the service(s), receipt of product(s), the date of the receipt
by HCDE/CP or the CP member of Vendor’s final invoice or claim for payment in connection with this Contract, or the
date HCDE/CP or the CP member makes final payments and closes pending matters in connection with a federal grant,
whichever is later. If an audit or a compliance review has been announced, the Vendor shall retain its records and
accounts until such audit or compliance review has been completed.
When federal funds are expended by HCDE or any CP member pursuant to this Contract, Vendor certifies that it will
comply with the record retention requirements detailed in 2 CFR § 200.334. Vendor further certifies that Vendor will
retain all records as required by 2 CFR § 200.334 for a period of three years after grantees or subgrantees submit final
expenditure reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed.
5.32. Right to Review, Audit and Inspect
HCDE/CP, CP members, any federal agency that has awarded federal funds/grant(s) to HCDE/CP or a CP member, and
the Comptroller General of the United States, and/or any of their authorized representatives, shall, upon written notice,
have the right to audit and examine all of Vendor’s records and accounts relating to this Contract and inspect any project
performed by the Vendor relating to this Contract. Records subject to audit/review shall include, but are not limited to,
all Purchase Orders resulting from this Contract and records which may have a bearing on matters in connection with
the Vendor’s work for HCDE/CP and/or CP members, and shall be open to inspection and subject to audit/review and/or
reproduction by HCDE/CP, CP member, and/or their authorized representative(s) to the extent necessary to adequately
permit evaluation and verification of:
5.32.1. Vendor’s compliance with this Contract and the requirements of the RFP.
5.32.2. Compliance with procurement laws, policies, and procedures, including, without limitation,
reviewing/comparing pricing on invoices for HCDE/CP and/or CP members.
5.32.3. Compliance with provisions for computing billings to HCDE/CP and/or to CP members.
5.32.4. Any other matter related to this Contract.
5.33. Indemnification
VENDOR SHALL INDEMNIFY AND HOLD HARMLESS HCDE/CP AND EACH CP MEMBER, INCLUDING
HCDE’S AND CP MEMBERS’ TRUSTEES, OFFICERS, ADMINISTRATORS, EMPLOYEES, AND AGENTS,
FROM ALL CLAIMS, LIABILITIES, COSTS, SUITS OF LAW OR IN EQUITY, EXPENSES, ATTORNEYS’ FEES,
FINES, PENALTIES OR DAMAGES ARISING FROM ACTS OR OMISSIONS OF VENDOR, VENDOR’S
EMPLOYEES, AGENTS, OR SUBCONTRACTORS, IN CONNECTION WITH THIS CONTRACT, INCLUDING
WITHOUT LIMITATION, THOSE ARISING FROM CLAIMED INFRINGEMENT OF ANY PATENTS,
TRADEMARKS, COPYRIGHT OR OTHER CORRESPONDING RIGHT(S) WHICH IS RELATED TO ANY ITEM
VENDOR IS REQUIRED TO DELIVER. VENDOR’S OBLIGATIONS UNDER THIS CLAUSE SHALL SURVIVE
ACCEPTANCE AND PAYMENT BY HCDE/CP OR THE CP MEMBER.
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5.34. Governing Law and Exclusive Venue
The laws of the State of Texas, without regard to its provisions on conflicts of laws, govern this Contract. Any dispute
under this Contract involving HCDE/CP must be brought exclusively in the state and federal courts located in Houston,
Harris County, Texas. Any dispute not involving HCDE/CP but involving a CP member and Vendor shall be governed
by the laws of the state of the CP member, without regard to its provisions on conflicts of laws, and exclusive jurisdiction
and venue shall lie in the city, county, and state of the CP member.
5.35. Multiple Contract Awards; Non-Exclusivity
HCDE/CP reserves the right to award multiple contracts under the RFP, including multiple contracts for each
product/service category. Product/Service categories are established at the sole discretion of HCDE/CP. HCDE/CP will
base a recommendation for contract award, including whether to award a single or multiple contracts, based on the
evaluation factors listed in this RFP; contracts will be awarded to proposers with a minimum score of 70 to be considered
for award.7 Nothing in this Contract may be construed to imply that Vendor has the exclusive right to provide products
and/or services to HCDE/CP and/or CP members. During the Term of this Contract, HCDE/CP and CP members reserve
the right to use all available resources to procure other products and/or services as needed and doing so will not violate
any rights of Vendor. If a vendor has an existing HCDE/CP contract in the same contract title, upon award the new
contract will immediately supersede the older contract.
5.36. New Products
New products that meet the specifications detailed in the RFP may be added to this Contract, with prior written approval
from HCDE/CP. Pricing of any new products shall be equivalent to the percentage discount or proposed prices for other
similar products. Vendor may replace or add products to the contract if: the replacing products are equal to or superior
to the original products offered or discounted in a similar degree or to a greater degree and the products meet the
requirements of the RFP. No products may be added to avoid competitive procurement procedures. HCDE/CP may
reject any proposed additions, without cause, in its sole discretion.
5.37. No Substitution; Product Recall
Any Purchase Order issued pursuant to this Contract shall conform to the specifications and descriptions identified in
this Contract and the RFP. Vendor shall not deliver substitutes without prior written authorization from HCDE/CP or
the CP member.
If a product recall is instituted on any good that has been furnished and delivered to HCDE/CP or any CP member,
Vendor must immediately (i.e., within 24 hours but preferably sooner) notify the purchasing agent of HCDE/CP and
the purchasing CP member by e-mail or in writing and must include all pertinent information relating to the recall. If
Vendor is unable to contact the purchasing agent, Vendor must contact the Director of Purchasing of HCDE/CP and the
purchasing CP member. Vendor will be responsible for all costs associated with replacing the recalled product,
including replacement cost, shipping charges, etc. This requirement shall survive payment and acceptance of the goods.
5.38. Penalties
If the Vendor is unable to provide the product(s) or services at the prices quoted in Vendor’s proposal or if Vendor fails
to fulfill or abide by the terms and conditions of the Contract, the RFP, or a Supplemental Contract, HCDE/CP or the
CP member may take the following action(s), in the sole discretion of HCDE/CP or the CP member, and Vendor agrees
to comply with the chosen action(s):
5.38.1 Insist that the Vendor honor the quoted price(s) specified in Vendor’s proposal or the Supplemental Contract,
as applicable;
5.38.2 Have the Vendor pay the difference between the Vendor’s price and the price of the next acceptable proposal,
as determined by HCDE/CP or the CP member;
5.38.3 Have the Vendor pay the difference between Vendor’s price and the actual purchase price of the product or
service on the open market; and/or
5.38.4 Recommend to HCDE Board of Trustees that the Vendor no longer be given the opportunity to submit a
proposal to HCDE/CP and/or that this Contract be terminated.
7
HCDE/CP has the option to adjust (increase or decrease) the minimum score to be considered for award in the best interest of HCDE/CP
and its members.
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5.39. Promotion of Contract Marketing Plan
The marketing of Vendor’s company, product, and/or services shall be the sole responsibility of Vendor. HCDE/CP
may only supply Vendor with CP members’ contact lists that contain name, address, phone numbers, and/or email
addresses. Other items geared toward the joint-marketing of HCDE/CP and Vendor’s company, product, and/or services
shall be at HCDE/CP’s sole discretion. Encouraging CP members to circumvent this Contract by purchasing directly
from Vendor may result in suspension or termination of this Contract. For so long as this Contract is valid and
enforceable between the parties, Vendor agrees to display the CP seal in its marketing collateral materials, such as
Vendor’s website and related marketing materials. Vendor shall submit all promotional materials to HCDE/CP and
obtain written approval before Vendor finalizes or publishes promotional material bearing the HCDE/CP or HCDE/CP
name or seal. Vendor may not release any press release or other publication regarding this Contract or HCDE/CP unless
and until HCDE/CP first approves the press release or publication in writing.
5.40. Website Support
Vendor agrees to cooperate with HCDE/CP in publicizing contract particulars on the CP website. Vendor also agrees to
work with HCDE/CP in updating and maintaining current information on Vendor activities related to the Contract on
the CP website. Vendor agrees to provide an electronic version of its logo for use on the CP website upon Contract
award and provide other information as reasonably requested by HCDE/CP to help ensure that the CP website is current
and consistently updated.
5.41. Safety
Vendor, its subcontractor(s), and their respective employees shall comply fully with all applicable federal, state, and
local safety and health laws, ordinances, rules, and regulations in the performance of services under this Contract,
including, without limitation, those promulgated by HCDE/CP, CP members, and by the Occupational Safety and Health
Administration (“OSHA”). In case of conflict, the most stringent safety requirements shall govern. Vendor shall comply
with all other safety guidelines and standards as required by HCDE/CP or CP members. Vendor shall indemnify and
hold HCDE/CP and/or the CP member harmless from and against all claims, demands, suits, actions, judgments, fines,
penalties, and liability of every kind arising from the breach of Vendor’s obligations under this provision.
5.42. Workforce
Vendor shall employ only orderly and competent workers, skilled in the performance of the services, if any, which shall
be performed under this Contract. Vendor, its employees, subcontractors, and subcontractor’s employees may not use
or possess any firearms, alcoholic or other intoxicating beverages, illegal drugs or controlled substances while on the
job or on HCDE/CP and CP members’ property, nor may such workers be intoxicated or under the influence of alcohol
or drugs on HCDE/CP and CP members’ property.
5.43. Supplemental Contracts
A CP member and Vendor may enter into a separate, Supplemental Contract. Any Supplemental Contract developed as
a result of this Contract and/or the RFP is exclusively between the CP member and Vendor and shall have no effect or
impact on HCDE, any other CP member, or this Contract. Any Supplemental Contract between Vendor and a CP
member is exclusively between that specific CP member and Vendor and will be subject to immediate cancellation by
the CP member (without penalty to the CP member) if, in the opinion of the CP member, the quality, service, and
specification requirements, and/or the terms and conditions are not maintained as stated in the Supplemental Contract.
Vendor shall promptly notify HCDE/CP of any Supplemental Contract executed between Vendor and a CP member.
5.44. Insurance
Vendor is required to provide HCDE/CP and/or the CP member with copies of certificates of insurance, naming
HCDE/CP and/or the CP member as additional insured’s for Texas Workers Compensation and General Liability
Insurance, within 14 business days of contract award and prior to the commencement of any work under this
Contract at insurance@choicepartners.org. Certificates of Insurance, name and address of Vendor, the limits of
liability, the effective dates of each policy, and policy number shall be delivered to HCDE/CP and/or the CP member
prior to commencement of any work under this Contract. The insurance company insuring Vendor shall be licensed in
the State of Texas or the state in which the CP member is located, and shall be acceptable to HCDE/CP and/or the CP
member. Vendor shall give HCDE/CP or the CP member a minimum of ten (10) days’ notice prior to any modifications
or cancellation of said policies of insurance. Vendor shall require all subcontractors performing any work under or
relating to this Contract to maintain coverage as specified below. Vendor shall, at all times during the Term of this
Contract, maintain insurance coverage with not less than the type and requirements shown below. If the CP member has
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higher insurance requirements than those listed below, such may be added to the Purchase Order. Such insurance is to
be provided at the sole cost of the Vendor. These requirements do not establish limits of Vendor’s liability.
All policies of insurance shall waive all rights of subrogation against HCDE, CP members, and HCDE/CP and CP members’
officers, employees and agents.
Upon request, certified copies of original insurance policies shall be furnished to HCDE/CP and/or to CP members.
HCDE/CP and the CP member, as requested, shall be named as an “additional insured” on insurance policies.
HCDE/CP and the CP member reserve the right to require additional insurance should HCDE/CP or the CP member deem
additional insurance necessary, in their sole discretion.
Workers Compensation (with waiver of subrogation to HCDE/CP and the CP member) Employer’s Liability,
including all states, U.S. Longshoremen, Harbor Workers and other endorsements.
Statutory, and Bodily Injury by Accident: $100,000 each employee. Bodily Injury by Disease: $500,000,
policy limit $100,000 each employee.
Commercial General Liability Occurrence Form including, but not limited to, Premises and Operations,
Products Liability Broad Form Property Damage, Contractual Liability, Personal and Advertising Injury
Liability and where the exposure exists, coverage for watercraft, blasting collapse, and explosions, blowout,
cratering and underground damage. $300,000 each occurrence Limit Bodily Injury and Property Damage
combined. $300,000 Products-Completed Operations Aggregate Limit $500,000 per Job Aggregate. $300,000
Personal and Advertising Injury Limit.
Automobile Liability Coverage: $300,000 Combined Liability Limits Bodily Injury and Property Damage
Combined.
5.45. Participation in HCDE/CP
Vendor acknowledges and agrees that continued participation in the HCDE/CP cooperative purchasing program is
subject to HCDE/CP’s sole discretion and that Vendor may be removed from the HCDE/CP program at any time, with
or without cause, in HCDE/CP’s sole discretion. All work resulting from this Contract must cease immediately after
completion of the final accepted Purchase Order. Nothing in this Contract or in any other communication between
HCDE/CP and Vendor may be construed as a guarantee that HCDE/CP or CP members will submit any Purchase Order
to Vendor at any time.
At a minimum, to continue participation in the HCDE/CP cooperative purchasing program, Vendor must:
Submit detailed monthly reports of all sales activity, including all sales and contracts where HCDE is the lead
agency (such report is required even if there is no sales activity for a given month);
Timely remit Administrative Fee(s) to HCDE/CP;
Market Choice Partners, including inclusion of CP seal on Vendor’s website, development and execution of
marketing plan, and participation in at least 3 marketing events (such as trade shows and conferences) annually;
Maintain a minimum annual sales activity of $15,000;
Completion of all required forms (such as Form 1295, EDGAR Certifications, etc.); and
Maintain required insurance and submit updated certificate(s) to CP annually
5.46. No Agency or Endorsements
It is the intention of the parties to this Contract that Vendor is independent of HCDE/CP and CP members, is an
independent contractor, and is not an employee, agent, joint venturer, or partner of HCDE/CP or any CP member.
Nothing in this Contract shall be interpreted or construed as creating or establishing the relationship of employer and
employee, agent, joint venturer or partner, between HCDE/CP and Vendor, any CP member and Vendor, HCDE/CP
and any of Vendor’s agents, or any CP member and any of Vendor’s agents. Vendor has no power or authority to assume
or create any obligation or responsibility on behalf of HCDE/CP or any CP member, and HCDE/CP and HCE members
have no power or authority to assume or create any obligation or responsibility on behalf of Vendor. This Contract shall
not be construed to create or imply any partnership, agency, or joint venture, nor shall it be construed or deemed an
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endorsement of a specific company or product. Vendor agrees that HCDE/CP and CP members have no responsibility
for any conduct of any of Vendor’s employees, agents, representatives, contractors, or subcontractors.
5.47. Equal Opportunity
It is the policy of HCDE/CP not to discriminate on the basis of race, color, national origin, gender, limited English
proficiency or handicapping conditions in its programs. Vendor agrees not to discriminate against any employee or
applicant for employment to be employed in the performance of this Contract, with respect to hire, tenure, terms,
conditions and privileges of employment, or a matter directly or indirectly related to employment, because of age (except
where based on a bona fide occupational qualification), sex (except where based on a bona fide occupational
qualification) or race, color, religion, national origin, or ancestry. Vendor further agrees that every subcontract entered
into for the performance of this Contract shall contain a provision requiring non-discrimination in employment herein
specified, binding upon each subcontractor. Breach of this covenant may be regarded as a material breach of the
Contract.
5.48. Force Majeure
Neither HCDE, any CP member, or Vendor shall be deemed to have breached any provision of this Contract as a result
of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network
failures, acts of civil or military authorities, civil disturbances, wars, energy crises, fires, transportation contingencies,
interruptions in third-party telecommunications or Internet equipment or service, other catastrophes, or any other
occurrences which are reasonably beyond HCDE, any CP member, or Vendor’s control.
HCDE, CP members, and Vendor are required to use due caution and preventive measures to protect against the effects
of force majeure, and the burden of proving that a force majeure event has occurred shall rest on the party seeking relief
under this provision. The party seeking relief due to force majeure is required to promptly notify the other parties in
writing, citing the details of the force majeure event and relief sought, and shall resume performance immediately after
the obstacles to performance caused by a force majeure event have been removed, provided the Contract has not been
terminated. Delay or failure of performance, by either party to this Contract, caused solely by a force majeure event,
shall be excused for the period of delay caused solely by the force majeure event. HCDE, CP members, and Vendor
shall not have any claim for damages against any other party resulting from delays caused solely by force majeure.
Notwithstanding any other provision of this Contract, in the event the Vendor’s performance of its obligations under
this Contract is delayed or stopped by a force majeure event, HCDE/CP shall have the option to terminate this Contract.
This section shall not be interpreted as to limit or otherwise modify any of HCDE’s or CP members’ contractual, legal,
or equitable rights.
5.49. Severability
In the event any one or more of the provisions contained in this Contract shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other
provisions, and the Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been
contained in it.
5.50. Waiver
No failure on the part of either party at any time to require the performance by the other party of any term hereof shall
be taken or held to be a waiver of such term or in any way affect such party’s right to enforce such term, and no waiver
on the part of either party of any term hereof shall be taken or held to be a waiver of any other term hereof or the breach
thereof. No waiver, alteration, or modification of any of the provisions of this Contract shall be binding unless in writing
and signed by duly authorized representatives of the parties hereto.
5.51. Entire Agreement
The Contract, the RFP, Vendor’s proposal submitted in response to the RFP, the attached and incorporated attachments,
addendum, and/or exhibits, if any, and the Supplemental Contract, if any, contain the entire agreement of the parties
relative to the purpose(s) of the Contract and supersede any other representations, agreements, arrangements,
negotiations, or understandings, oral or written, between the parties to this Contract. In the event of a conflict between
this Contract and the RFP or Vendor’s proposal submitted in response to the RFP, this Contract shall control. In the
event of a conflict between the RFP and Vendor’s proposal submitted in response to the RFP, the RFP shall control.
This Contract supersedes any conflicting terms and conditions on any Purchase Order, invoices, checks, order
acknowledgements, forms, purchase orders, or similar commercial documents relating hereto and which may be issued
by Vendor after the Effective Date of this Contract.
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In addition to this Contract, a Supplemental Contract between Vendor and the CP member may be established to further
detail the terms and conditions of the CP member’s specific project. In the event of a conflict between this Contract
and the Supplemental Contract, as to HCDE, this Contract shall prevail. In the event of a conflict between this Contract
and the Supplemental Contract, as to the CP member, the Supplemental Contract shall prevail unless the Supplemental
Contract states otherwise.
5.52. Interpretation
Vendor agrees that the normal rules of construction that requires that any ambiguities in this Contract are to be construed
against the drafter shall not be employed in the interpretation of this Contract.
5.53. Notice
Any notice provided under the terms of this Contract by the parties to any other shall be in writing and shall be given
by hand-delivery or by certified or registered mail, return receipt requested. Notice shall be sufficient if made or
addressed to the party at the address listed in the signature line of this Contract. Notice shall be deemed effective upon
receipt. Each party may change the address at which notice may be sent to that party by giving notice of such change to
the other party by certified mail, return receipt requested.
5.54. Captions
The captions herein are for convenience and identification purposes only, are not an integral part hereof, and are not to
be considered in the interpretation of any part hereof.
5.55. USDA/TDA Special Terms and Conditions
The following terms and conditions apply to all procurements and purchases involving federal School Nutrition Program
funds. In the event of a conflict or inconsistency between the following terms and conditions and any provision of the
Agreement, the procurement solicitation issued by HCDE, or the portion of Vendor’s proposal submitted in response to
HCDE’s procurement solicitation that is satisfactory to HCDE, the following terms and conditions shall control.
5.55.1 Market Basket Analysis
HCDE/CP reserves the right, in its sole discretion, to use a “Market Basket Analysis” method, as that term is
defined by applicable USDA/TDA regulations and guidance. The Market Basket Analysis sample is
established to represent 75% of the total estimated value of the Contract. The most recent velocity/sales
report(s) from HCDE/CP’s current supplier(s) was used to project the balance of the year and adjusted for any
estimated change in menu and participation for the following year. As a result, this list of [100] goods to be
purchased under this procurement solicitation and any resulting Contract includes the top [60] goods purchased
by dollar volume representing the 75% threshold. Prices for the remaining [40] goods listed in this procurement
solicitation should also be included, though they will not be a part of the Market Basket Analysis. The Market
Basket Analysis shall not be used for service or equipment contracts/procurement solicitations or for Fee-For-
Service Processing contracts.
5.55.2 Material Change
If a material change (as the term is defined by TDA rules and regulations) to a contract entered into between
HCDE/CP and Vendor occurs, then the contract will not be renewed upon the conclusion of its term. Upon
the expiration of the term, HCDE/CP may issue a new RFP for the goods or services procured under the
previously-existing contract. Material change for purposes of this Section 5.55.2 means a modification that
substantially exceeds the terms of the original contract between HCDE/CP and Vendor.
5.55.3 Supplemental Contracts
Supplemental Contracts are entered into pursuant to the piggyback method delineated in the U.S. Department
of Agriculture directive SP 35-2012. Should the “piggybacking” result in a material change to the Contract,
HCDE/CP will proceed under Section 5.55.2 of this RFP.
5.55.4 New Products
During the Term of a Contract awarded under this RFP, additional purchases not included in the original RFP
list and resulting awarded contract may become necessary and benefit HCDE/CP members. Vendor and
HCDE/CP agree that the aggregate value of added purchases during each year of the Contract (if renewed)
shall not exceed 10% of the estimated total value of the Contract. The total value of the Contract must be
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agreed upon, and the dollar value listed in the Contract and each renewal term of the Contract (if any). For
purposes of this section, the total value of the Contract includes all contracts awarded as a result of the
procurement solicitation to all vendors. For the initial Term of a Contract awarded under this RFP, Vendor
and HCDE/CP agree that the total value of the Contract shall be $200 million. Additions of new products may
be included in the awarded Contract list during the renewal of the Contract through an amendment to the
Contract, and the total Contract value adjusted accordingly. For each renewal term of the Contract, the total
actual value of the Contract in the preceding year and the additional new product(s) made during that Term
will be the basis for determining the maximum dollar amount (not to exceed 10%) of the additional added
product(s) that will be allowed during the next Contract renewal term.
5.55.5 Bonds
Vendor shall provide all bonds, including bid guarantee, performance bond, and payment bond, as applicable
under U.S. Department of Agriculture and/or Texas Department of Agriculture rules.
5.55.6 Use by Other Governmental Entities
In the event that HCDE/CP allows other governmental entities to “piggyback” onto any existing contract
between HCDE and Vendor entered into pursuant to this procurement solicitation, Vendor agrees and
understands that such other governmental entities may include “school food authorities,” as that term is used
in SP 35-2012. Should the “piggybacking” result in a material change to the Agreement for purposes of
USDA/TDA purchases, HCDE/CP will proceed under the foregoing section entitled “Material Changes.”
5.55.7 No Guarantee of Quantities
Quantities for purchases paid for with School Nutrition Program funds are subject to change for various
reasons, which include, but are not limited to the following: USDA commodity allocation(s), variations in
student population, production item substitution(s), changes in consumer taste or expectations, pricing, and
nutrition regulatory changes.
5.55.8 Buy American Act
The Buy American Act, set forth in 7 C.F.R. Part 210.21(d), requires that participants in the National School
Lunch Program and School Breakfast Program use the federal nonprofit food service funds, to the maximum
extent practical, to buy domestic commodities or products for Program meals. 7 CFR Part 210.21(d) defines a
“domestic commodity or product” as one that is either produced in the U.S. or is processed in the U.S.
substantially using agricultural commodities that are produced in the U.S. “Substantially” means that over 51
percent of the final processed product consists of agricultural commodities that were grown domestically.
Because many HCDE/CP members participate in the National School Lunch Program and School Breakfast
Program, HCDE/CP requires Vendor to certify whether its products are “domestic commodities or products”,
as defined by 7 C.F.R. Part 210.21(d). Accordingly, Vendor agrees to provide certification and any necessary
documentation requested by HCDE/CP member that the food product was processed in the U.S. and the
percentage of U.S. content, by weight or volume, in the food component of processed food products supplied
to HCDE/CP members. A “domestic commodity or product” is defined as one that is either produced in the
U.S. or is processed in the U.S. substantially using agricultural commodities that are produced in the U.S. as
provided in 7 C.F.R. 210.21(d). “Substantially” means that over 51 percent of the final processed product
consists of agricultural commodities that were grown domestically. When USDA Foods items are
manufactured into processed end products, 51% of resulting food products must be of United States origin.
Vendor certifies that Vendor shall provide food products that meet the Buy American provision. Vendor
further certifies that, in compliance with the Buy American provision, its products are “domestic
commodities or products” as defined by 7 C.F.R. § 210.21(d). Vendor further certifies that the food
products it supplies are processed in the U.S. and Vendor shall certify the percentage of U.S. content, by
weight or volume, in the food component of processed food products supplied to the District.
If Vendor is repetitively unable to provide domestic food products, HCDE/CP member may require Vendor to
provide evidence that Vendor is capable of fulfilling the terms and conditions of the Contract and specifically,
the Buy American provision. If HCDE/CP member determines that Vendor is not capable of fulfilling the
terms and conditions of the Contract and/or specifically, the Buy American provision, HCDE/CP member may
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terminate its Contract with Vendor. Vendor shall provide documentation that demonstrates that food products
meet the Buy American provision.
Vendor must notify the District if a delivery contains non-domestic products, so the District may approve
delivery as an exception to the Buy American provision. Vendor certifies that it will adhere to the notification
requirements for the Buy American provision.
Exceptions to the Buy American provision should be used as a last resort; however, an alternative or exception
may be approved by the CP member, upon request, by occurrence (i.e., delivery). Blanket exception approvals
are not allowed. The District must determine that the use of a non-domestic food product is appropriate, using
the USDA-prescribed questions in making the decision. See “Requirements for an Exception,” ARM Section
17b Buy American, at p. 19 (August 12, 2020). Vendor agrees to provide information to the District that will
assist the District in this determination. The decision to purchase or accept delivery of a non-US product must
be made by the District. Vendor agrees to comply with all requirements imposed by applicable law,
USDA/TDA guidance, and the District concerning Buy American provision exceptions.
.
Vendor further agrees to provide HCDE/CP members with documentation verifying that a domestic product is
not available and the cost range is reasonable within a reasonable time upon request by HCDE/CP members.
In the event Vendor or Vendor’s supplier(s) are unable or unwilling to certify compliance with the Buy
American Provision, or the applicability of an exception to the Buy American provision, HCDE/CP members
may decide not to purchase from Vendor and/or HCDE/CP may terminate the Contract if Vendor is incapable
of fulfilling the terms and conditions of the Contract, including the Buy American requirements.
Additionally, HCDE/CP members may require country of origin on all products and invoices submitted for
payment by Vendor, and Vendor agrees to comply with any such requirement.
5.55.9 Records Retention
When school nutrition program funds are expended by HCDE or any CP member pursuant to this Contract,
Vendor certifies that it will comply with the record retention requirements promulgated by USDA/TDA.
Vendor further certifies that Vendor will retain all records as required by USDA/TDA for a period of five (5)
years after the end of the fiscal year to which the documentation/records pertain. Vendor further certifies that
these records must be accessible to appropriate HCDE/CP member and federal or state reviewers. See TDA
ARMS Manual, 17.107.
General eBid RFP (revised October 2022) Page 27 of 33
5/17/2023
Ms. Stephanie Adams
West Music Company
1212 5th Street
Coralville, IA 52241
Subject: Contract Award
Dear: Ms. Stephanie Adams
Congratulations! Harris County Department of Education (HCDE) has awarded West Music Company a
contract for the following commodity/services, based on the proposal submitted to HCDE Choice
Partners on 3/28/2023.
Musical Instruments and Related Items Contract No. 23/025SG-05
The contract is effective 5/17/2023 and will expire on 5/16/2024. The contract may be renewed for
up to four (4) one-year renewals, if mutually agreed to by Choice Partners and West Music Company.
Your contract manager, Steve Gibson, will contact you in the next few weeks and set up an appointment
to discuss the contract details and new vendor orientation. The partnership between West Music
Company and Choice Partners should be mutually beneficial for us, as well as our participating
agencies.
A press release announcing the award is posted both at www.choicepartners.org and at www.hcde-
texas.org. Your contract manager will send you the Choice Partners seal to add to your website and
marketing materials and will request additional information, so we can accurately describe your
company on our website.
If you have any questions or concerns in the meantime, please feel free to call us at the office at 877-
696-2122.
Sincerely,
Jeff Drury, Senior Director
Choice Partners
A division of Harris County Department of Education
Division of Harris County Department of Education
6005 Westview Dr., Houston, TX 77055 713.696.2122 877.696.2122 www.ChoicePartners.org